Pemberton v. Pemberton

• Decision Date: 03 January 1980
• Parties: Benita B. PEMBERTON v. Norman B. PEMBERTON et al. 1
• Court: Appeals Court of Massachusetts

Page 1305

411 N.E.2d 1305

9 Mass.App.Ct. 9

Benita B. PEMBERTON v. Norman B. PEMBERTON et al. ¹

Appeals Court of Massachusetts, Norfolk.

Argued Nov. 15, 1979.

Decided Jan. 3, 1980.

Daniel F. Featherston, Jr., Boston, for Benita B. Pemberton.

Edward E. Kelly, Boston, for Norman Pemberton.

Paul E. George, Boston, for South Shore Bank, trustee.

Before HALE, C. J., and GREANEY and DREBEN, JJ.

GREANEY, Justice.

Norman B. and Benita B. Pemberton were divorced by a decree absolute entered on July 29, 1971, in the Norfolk County Probate Court. The decree incorporated by reference a property settlement agreement entered into by the parties on December 31, 1970, which, insofar as material to this appeal, obligated Norman to pay $1,520.83 monthly in support for Benita and their five minor children (with adjustments in the event of Benita's remarriage and the children's successively reaching age twenty-one), and required him to transfer certain common stocks to Benita, including ninety shares of New Park Mining Co. Additionally, Norman later became obligated to pay the real estate taxes on the marital home. ² Incorporation of the agreement in the decree had the effect of ordering alimony and support in the amounts specified in the agreement and ordering compliance with its other terms. Salvesen v. Salvesen, 370 Mass. 608, 610, 351 N.E.2d 499 (1976). Norman fell behind in his obligations, causing Benita on August 30, 1974, to file a petition for contempt; Norman countered with a petition to reduce his support obligations, ³ and Benita cross petitioned for their increase. Hearings ensued before a master. The master's report, filed on October 27, 1977, ⁴ recommended assessing approximately $21,800 in arrearages against Norman for unpaid alimony and support and charged him $1200 as the value of the untransferred mining stock, which by that time had been sold. It was also established before the master and the judge that Norman had failed to pay municipal bills for real estate taxes and water charges on the former marital home. ⁵ The report was adopted and judgments entered on December 27, 1977, which (a) found Norman in contempt and fixed the arrearages at $28,748.62; (b) reduced Norman's support obligations from $250 to $225 per week; (c) dismissed Benita's petition for modification; and (d) awarded Benita's counsel $13,241.06 attorney's fees and expenses against a requested amount of $32,683.44. The judge subsequently denied Benita's motion to amend the judgments which sought reinstatement of the full level of support, award of the entire amount of counsel fees, and an order requiring the payment of Norman's past due obligations from the assets of a trust established by Norman's father for the benefit of Norman, Benita and the children. Benita has appealed from the denial of that motion for postjudgment relief and from the aforementioned judgments, with the exception of the judgment dismissing her petition for modification. We conclude that it was error to reduce Norman's support below the levels provided in the agreement and that the amount assessed as arrearages should have included the unpaid real estate taxes, the water liens, and the value of the stock. We leave undisturbed the award of attorney's fees and the judge's denial of relief against the trust.

1. Contempt and modifications. The issues pertaining to these petitions are before us on a record consisting primarily of the pleadings, a particular portion of the evidence, exhibits and the master's report. That report extensively analyzes the circumstances of the parties and contains all the subsidiary findings underlying its general findings and recommendations. In such a case we "must take these subsidiary findings together with the inferences that ought to be drawn from them and reach our own conclusions." Bills v. Nunno, 4 Mass.App. 279, 283-284, 346 N.E.2d 718 (1976), and cases cited. Furthermore, since we have everything that was before the judge, all questions of fact, law and discretion are open to review. Krokyn v. Krokyn, --- Mass. ---, --- - --- ^a, 390 N.E.2d 733 (1979).

(a) Arrearages and support. The judge's award of $28,748.62 reflects acceptance of the master's basic findings on the unpaid support between 1974 and 1977, with interest thereon, and acceptance of the master's conclusion that Norman has a present ability to pay the arrearages. Norman does not challenge either of those conclusions; indeed, our review indicates that they are abundantly supported by the master's subsidiary findings and are correct.

The judge, however, refused to charge Norman with the value of the stock or the amount due on the real estate taxes and water liens, and further reduced his support obligations from $250 to $225 per week. The basis for the judge's action is unclear, ⁶ but must presumably find support in a conclusion that Norman had established a change in his or Benita's circumstances, since the date of the original and modified orders, which justified his previous defaults and which could be expected to continue in the future.

Although the power of a Probate Court to modify its judgments in domestic relations cases is "broad and general," Whitney v. Whitney, 325 Mass. 28, 31, 88 N.E.2d 647 (1949), O'Brien v. O'Brien, 325 Mass. 573, 576, 91 N.E.2d 775 (1950), it has nevertheless been held "repeatedly ... that no modification can be made unless the (party seeking a reduction) shows a change of circumstances since the entry of the earlier (judgment) .... (T)he basis for this rule is sound. The parties have had their day in court and the issue ought not to be relitigated unless there has been a change of circumstances after the entry of the original (judgment)." Robbins v. Robbins, 343 Mass. 247, 249, 178 N.E.2d 281 (1961). See also Hinds v. Hinds, 329 Mass. 190, 191, 107 N.E.2d 319 (1952); Mead v. Mead, 2 Mass.App. 338, 340, 311 N.E.2d 585 (1974). The rule applies identically whether modification is considered in the context of a proceeding for modification or is sought in a proceeding for contempt. See Binder v. Binder, --- Mass.App. ---, --- - --- ^b, 390 N.E.2d 260 (1979).

The record does not demonstrate a material change in Benita's circumstances sufficient to justify the orders made on the contempt and Norman's modification petition. The 1970 agreement was designed to provide her with a gross annual income of approximately $18,000. The master found that her gross income in 1976 was approximately $16,000 (which included Norman's reduced payments) and that her weekly expenses in 1977 averaged $460, which included the repayment of $7,500 in bank loans at the rate of $71 each week. She held securities which were worth $7,500 at the end of 1976. Other than her interest in the home and its furnishings, she had no other assets of any significance. Certain discretionary payments to her of $600 monthly from the trustee of the marital deduction trust created for the benefit of Norman's mother under his father's will ceased in January, 1976, with the mother's death. The master's finding that these payments and other discretionary payments made by the trustee were supplementary to Norman's obligations imposed by the agreement and court orders, effectively forecloses Norman's argument that the payments were designed to reduce his support. In any event, if Norman had paid all that was due in 1976, Benita's income would have approximated $21,000 which, considering the effect of inflation and the loss of the discretionary trust payments, left her in no better position than she was in 1971.

Norman predicated his requested relief on three defined changes: (a) his remarriage in 1971; (b) three of his children attaining age eighteen; and (c) claimed business losses. The facts found by the master support his conclusion that Norman's remarriage did not provide a sufficient basis for reducing the outstanding support orders. See Whitney v. Whitney, 325 Mass. 28, 31, 88 N.E.2d 647 (1949); O'Brien v. O'Brien, 325 Mass. 573, 576, 91 N.E.2d 775 (1950) ("It may be that because of his second marriage (the husband) will suffer some financial hardship, but the short answer to that is that he must have entered into the second marriage conscious of his obligations to his former wife (and children) so that the second marriage with its attendant obligations affords him no relief," id. at 578, 91 N.E.2d 775). The master also correctly concluded that three children reaching age eighteen would not justify reduction in the support orders, because the express terms of the agreement provided for an annual reduction in the support orders as each child reached twenty-one. This provision in the agreement negated the consequences which would flow from the subsequent change in the law establishing an earlier age of emancipation. See clauses Forty-eighth through Fifty-first of G.L. c. 4, § 7, inserted by St. 1973, c. 925, § 1 (effective January 1, 1974), and G.L. c. 231, § 85P, inserted by St. 1975, c. 315, § 1.

Norman's financial position at the time of the divorce revealed that he had annual gross earnings of $31,000 from the family roofing business and approximately $700 yearly in dividends from the stock retained by him under the agreement. His gross income rose to $65,000 in 1971 but returned to $31,000 from 1973 through 1975. The adverse business losses relied upon by Norman were primarily rooted in the decline of the family roofing business, its deterioration after 1973, as the construction industry waned and costs and competition increased, and its liquidation in May, 1976. But after its liquidation, Norman remained in the roofing business under a new and different corporate name and branched out into several other ventures. The master found that Norman had been receiving "significant income" from his new roofing business and "substantial benefits" (well in excess of what was shown on a tax return indicating $280,000 in gross sales in 1975 with taxable income of $13,000) from a...